ENROLLED
Senate Bill No. 1007
(By Senators Jones, Plymale, Burdette, Mr. President,
Chernenko, Anderson, Bailey, Humphreys, Dittmar, Blatnik,
Walker, Tomblin, Wehrle, Miller, Minard, Dalton, Wagner,
Whitlow, Wooton, Manchin, Grubb, Holliday, Yoder, Craigo,
Boley, Lucht, Schoonover, Ross, Withers, Helmick and Sharpe)
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[Passed March 18, 1994; in effect ninety days from passage.]
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AN ACT to amend article six, chapter forty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
one-a; to amend and reenact section nine, article six-a of
said chapter; to amend and reenact section twenty-four,
article seven of said chapter; to amend and reenact section
three, article eleven-a, chapter sixty-one of said code; and
to amend and reenact sections seven and seven-a, article
twelve, chapter sixty-two of said code, all relating to
establishing a plan for achieving national caseload
standards for child protective service workers by the year
one thousand nine hundred ninety-five; prohibiting
restrictions on investigations and available services;
required face-to-face interviews of certain abused minors;
referrals from circuit courts and family law masters;
promulgation of rules and protocol for law enforcement in
child abuse cases; promulgation of legislative rules;
allowing statement of certain therapists in presentence
reports; and providing for presentence diagnosis and
treatment of certain offenders.
Be it enacted by the Legislature of West Virginia:
That article six, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
one-a; that section nine, article six-a of said chapter be
amended and reenacted; that section twenty-four, article seven of
said chapter be amended and reenacted; that section three,
article eleven-a, chapter sixty-one of said code be amended and
reenacted; and that sections seven and seven-a, article twelve,
chapter sixty-two of said code be amended and reenacted, all to
read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-1a. Minimum staffing complement for child protective
services.
For the sole purpose of increasing the number of full time
front line child protective service case workers and
investigators, the secretary of the department of health and
human resources shall have the authority to transfer fundsbetween all general revenue accounts under the secretary's
authority and/or between personnel and nonpersonnel lines within
each account under the secretary's authority:
Provided, That
nothing in this section shall be construed to require the
department to hire additional child protective service workers at
any time if the department determines that funds are not
available for such workers. Additionally, the secretary shall
prepare a plan to allow the department to progressively reduce
caseload standards in West Virginia for child protective services
workers, which if adopted by the Legislature during the regular
session of the year one thousand nine hundred ninety-five, shall
require implementation no later than the first day of July, one
thousand nine hundred ninety-six, with said plan to be submitted
to the joint committee on government and finance by the thirtieth
day of September, one thousand nine hundred ninety-four, and a
final report to be submitted to the Legislature by the first day
of January, one thousand nine hundred ninety-five.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-9. Establishment of child protective services; general
duties and powers; cooperation of other state agencies.
(a) The state department shall establish or designate in
every county a local child protective services office to perform
the duties and functions set forth in this article.
(b) The local child protective service shall investigate all
reports of child abuse or neglect:
Provided, That under nocircumstances shall investigating personnel be relatives of the
accused, the child or the families involved. In accordance with
the local plan for child protective services, it shall provide
protective services to prevent further abuse or neglect of
children and provide for or arrange for and coordinate and
monitor the provision of those services necessary to ensure the
safety of children. The local child protective service shall be
organized to maximize the continuity of responsibility, care and
service of individual workers for individual children and
families:
Provided, however, That under no circumstances may the
secretary or his or her designee promulgate rules or establish
any policy which restricts the scope or types of alleged abuse or
neglect of minor children which are to be investigated or the
provision of appropriate and available services.
Each local child protective service office shall:
(1) Receive or arrange for the receipt of all reports of
children known or suspected to be abused or neglected on a
twenty-four hour, seven-day-a-week basis and cross-file all such
reports under the names of the children, the family, any person
substantiated as being an abuser or neglecter by investigation of
the department of human services, with use of such cross-filing
of such person's name limited to the internal use of the
department;
(2) Provide or arrange for emergency children's services to
be available at all times;
(3) Upon notification of suspected child abuse or neglect,commence or cause to be commenced a thorough investigation of the
report and the child's environment. As a part of this response,
within fourteen days, there shall be: A face-to-face interview
with the child or children, and the development of a protection
plan, if necessary for the safety or health of the child, which
may involve law-enforcement officers or the court;
(4) Respond immediately to all allegations of imminent
danger to the physical well-being of the child or of serious
physical abuse. As a part of this response, within seventy-two
hours, there shall be: A face-to-face interview with the child
or children; and the development of a protection plan which may
involve law-enforcement officers or the court; and
(5) In addition to any other requirements imposed by this
section, when any matter regarding child custody is pending, the
circuit court or family law master may refer allegations of child
abuse and neglect to the local child protective service for
investigation of the allegations as defined by this chapter and
require the local child protective service to submit a written
report of the investigation to the referring circuit court or
family law master within the time frames set forth by the circuit
court or family law master.
(c) In those cases in which the local child protective
service determines that the best interests of the child require
court action, the local child protective service shall initiate
the appropriate legal proceeding.
(d) The local child protective service shall be responsiblefor providing, directing or coordinating the appropriate and
timely delivery of services to any child suspected or known to be
abused or neglected, including services to the child's family and
those responsible for the child's care.
(e) To carry out the purposes of this article, all
departments, boards, bureaus and other agencies of the state or
any of its political subdivisions and all agencies providing
services under the local child protective service plan shall,
upon request, provide to the local child protective service such
assistance and information as will enable it to fulfill its
responsibilities.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-24. Rules and regulations under chapter.
The secretary of the department of health and human
resources shall propose for promulgation legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code to implement the provisions of this chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-3. Victim impact statement; when required; contents;
use; right of defendant to review and present evidence.
(a) In every case in which a presentence report is ordered
by the court, such presentence report shall contain a victim
impact statement unless the court orders otherwise, if the
defendant, in committing a felony or misdemeanor, caused
physical, psychological or economic injury or death of thevictim.
(b) The victim impact statement shall be prepared by the
probation officer and shall include the identity of the victim,
an itemization of any economic loss suffered by the victim as a
result of the offense, a description of the nature and extent of
any physical or psychological injury suffered by the victim as a
result of the offense, the details of any change in the victim's
personal welfare, lifestyle or family relationships as a result
of the offense, whether there has been any request for
psychological or medical services initiated by the victim or the
victim's family as a result of the offense and such other
information related to the impact of the offense upon the victim
as may be required by the court.
(c) If the court does not order a presentence investigation
and report, the prosecuting attorney may request that the
probation officer prepare a victim impact statement. The victim
impact statement shall be considered by the court as a factor in
determining the appropriate sentence. Additionally, the
statement may be utilized for the determination of claims by
victims of crimes pursuant to the provisions of article two-a,
chapter fourteen of this code.
(d) In cases that involve child victims of offenses defined
in section twelve, article eight of this chapter or article
eight-b or eight-d of this chapter, any victim impact statement
in a presentence report may include a statement from a therapist,
psychologist or physician who is providing treatment to the childas to the recommendations regarding the effect that possible
disposition may have on the child.
(e) A victim impact statement prepared in accordance with
the provisions of this section, other than for claims by victims
of crimes pursuant to the provisions of article two-a, chapter
fourteen of this code, shall be made available to the defendant,
and his counsel if he is so represented, at least ten days prior
to the date set for pronouncement of his sentence. The court
shall, upon motion by or on behalf of the defendant, grant the
defendant a hearing, whereby he may introduce testimony or other
information related to any alleged factual inaccuracies in the
statement.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-7. Preliminary investigation; report on prospective
probationers.
When directed by the court, the probation officer shall make
a careful investigation of, and a written report with
recommendations concerning, any prospective probationer. Insofar
as practicable this report shall include information concerning
the offender's court and criminal record, occupation, family
background, education, habits and associations, mental and
physical condition, the names, relationship, ages and condition
of those dependent upon him for support and such other facts as
may aid the court in determining the propriety and conditions of
his release on probation. No person convicted of a felony or ofany offense described in article eight-b or eight-d, chapter
sixty-one of this code against a minor child may be released on
probation until this report shall have been presented to and
considered by the court. The court may in its discretion request
such a report concerning any person convicted of a misdemeanor.
The presentence report of any person convicted of an offense,
described in said articles or section twelve, article eight of
said chapter, may include a statement from a therapist,
psychologist or physician who is providing treatment to the
child. A copy of all reports shall be filed with the board of
probation and parole.
§62-12-7a. Presentence diagnosis and classification; power of
court; custody of convicted person; provision for
presentence reports; penalty for escape.
Notwithstanding any other provision of law, when any person
has been found guilty of, or pleads guilty to, a felony, or any
offense described in article eight-d or eight-b, chapter sixty-
one of this code, against a minor child, the court may, prior to
pronouncing of sentence, direct that the person be delivered into
the custody of the commissioner of corrections, for the purpose
of diagnosis and classification for a period not to exceed sixty
days:
Provided, That the court shall require that a presentence
report be completed by the probation officer assigned to that
person and be made available to the commissioner of corrections
prior to delivery of the person to a statutorily approved
diagnosis and classification unit of the division of corrections. While at the diagnosis and classification unit the person shall
undergo examination, diagnosis and classification and shall then
be remanded and delivered to the custody of the sheriff of the
county wherein he or she was found guilty or entered such plea.
Within ten days following the termination of the examination,
diagnosis and classification, the commissioner of corrections
shall make or cause to be made a report to the court wherein the
person was found guilty, or entered a plea of guilty, containing
the results, findings, conclusions and recommendations of the
commissioner with respect to such person.
Whenever a person is remanded into the custody of the
commissioner of corrections pursuant to this section, the person
shall be given credit on any sentence subsequently imposed by the
court equal to the time spent in such custody.
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